Lead Opinion
delivered the opinion of the court.
This action was brought by the owners of a raft of lumber to recover the possession of it from the raftsmen, who had brought it down the Mississippi from some point in Wisconsin, and who withheld it under a claim of a lien for a portion of the compensation agreed on for rafting. There was a special contract between the plaintiffs and defendants. By this contract the compensation was specified for managing ■the raft over various rapids and landing it at St. Louis, or some point on the Mississippi above St. Louis to be designated by the plaintiffs; and it was also provided that the owners of the lumber (the plaintiffs) should “ furnish money enough to pay off the. men within twenty-four hours after the delivery of the said lumber to market.” The balance of the agreed compensation was to be paid when the lumber was sold or estimated and measured.
Upon the trial, proof was offered by the defendants that the plaintiffs did not advance, and refused to advance, money enough to pay off the men when the raft reached St. Louis— the point which the plaintiffs designated for its delivery. This evidence was not allowed to go to the jury, and the court instructed that there was no lien.
The case, then, presents the two questions, first, whether there is a specific lien in such bailments, in the absence of any contract; and secondly, if there is, was the special contract proved a waiver of it. *
The precise limits to which the doctrine of specific liens has been extended by modern decisions can not be regarded as altogether settled. There is some disagreement as to the true foundation of the privilege ; some ascribing it solely to the obligation which the common law imposed upon persons engaged in particular pursuits, such as common carriers, inn-keepers, and certain classes of.tradesmen and artificers, to undertake any service in their line of business upon the demand of any one, however little might be known of his individual responsibility. The lien, in such cases, was given
It was hold in England, and the decision appears to be still acquiesced in, that agisters are not entitled to a lien, upon the ground that no additional value was imparted to the animals by feeding them. Judge Gibson, of Pennsylvania, in Steinman v. Wilkins, 7 W. & S. 466, expressed doubts as to the propriety of these decisions, observing that “ he was unable to see why a man, who fits an ox for the shambles by filling it with his provender, did not increase its intrinsic value.” And Beavan v. Waters, Mood. & Walk. 235, where a trainer of a race-horse was allowed a lien, and Scarfe v. Morgan, 4 Mees. & Wel. 270, where a keeper of a stallion was allowed a lien on the mare for'the price of the horse’s service, were cited as instances in which the increased value of the bailment was allowed as a basis for the lien, and were not easily distinguished from the case of the agister.
The refusal to allow the agister a lien may be safely placed upon the same ground upon which it is denied to the keeper of a livery stable, that it is inconsistent with the very nature of the employment. Horses are taken to livery with an express understanding that they are to be given up to the owner whenever he has use for them. It is the same with
It was at one time supposed that in order to lay the foundation for a specific. lien, the intrinsic value of the bailment must be increased by mechanical means. But this idea -seems to be abandoned in the English cases, to which we have referred, and it is clearly disavowed in the Pennsylva.nia case of S'teinman v. Wilkins, where a warehouseman was held to be entitled to his lien. Neither the warehouseman, the wharfinger, nor the common carrier, adds any thing to ’ the intrinsic value of the article. But a great change in the actual market value of an article may be and is effected by a change of place, brought about by the carrier, and the lapse of time during which the property has been preserved by the warehouseman. The concession of the lien to the wharf-inger and warehouseman is also conclusive that it is not given solely because of any unusual and extraordinary responsibility incurred, such as falls upon common carriers and inn-keepers. It is well settled that no such responsibility attends the employment of warehousemen and wharfingers, but the lien is allowed them as well as common carriers and inn-keepers.
We have not found any allusion to the business of rafts- ' men of logs or lumber contained in the elementary works or adjudged cases on this subject. We can only apply the principles we understand to be settled in reference to analogous employments. The raftsmen are not common carriers, but they are private carriers for hire. The fact that the materials transported require no vessel or craft to be interposed
It is well settled that the existence of a special contract does not of itself discharge a lien. The contract must be examined, and if it expressly or impliedly waives the lien, there is, of course, an end to the question. Whore, for instance, the payment of the price of the service is stipulated to be made at a date subsequent to the delivery of the property, upon which the labor has been expended, there can, of course, be no lien.
The contract in the present case undoubtedly repels all idea of a lien for so much of the contract price, or cost of transportation, as exceeded the sum necessary to pay off the hands at the place of delivery. But the plaintiffs agree to furnish money enough “ to pay off the men (employed on the raft) within twenty-four hours after the delivery of the said lumber to market.” If this expression is to be understood as meaning a delivery of the raft to its owners, there could then be no lien retained, as it is stipulated to precede the payment by twenty-four hours. But we do not understand the word “ delivery” to be used in this strict sense, and to give it such a construction is to defeat the main purpose of the clause. The words “ delivery to market” mean “ arrival at the place of destination.” When this point was reached by the raft, the owners were allowed twenty-four hours within which to furnish so much of the contract price of transportation as would enable the contractors to pay off the subordinate employees. The implication is very strong
We think the court should not have excluded the evidence offered, that the plaintiff refused to advance sufficient money to pay off -hands, and that the plaintiffs had no right to recover possession of the raft until they had complied with their contract in this respect.-
Judgment reversed and cause remanded.
Dissenting Opinion
dissenting. I am not prepared to say that a raftsman has a lien for his services on the lumber rafted. The conduct of the parties show here that the lien was waived if any existed.